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Derek Khanna,
visiting fellow with Yale Law School’s Information Society Project. He worked on both of Mitt Romney’s presidential campaigns and for Republican Senator Scott Brown of Massachusetts. He spearheaded a petition that’s received more than 114,000 signatures online to make unlocking cellphones legal that prompted the White House to come out against the ban. He’s also known for authoring a controversial memo in favor of copyright reform for the Republican Study Committee that cost him his job.

Just hours after he appeared on Democracy Now! on Monday, former Republican staffer Derek Khanna received a call from the White House saying it was coming out against a ban on unlocking cellphones that went into effect in January. Under the ban, consumers can face up to five years in prison if they unlock their cellphones for use on another carrier without authorization. Khanna helped spearhead a petition against the ban that received more than 114,000 signatures on the White House website. In an online post titled "It’s Time to Legalize Cell Phone Unlocking," White House Senior Adviser for Internet, Innovation and Privacy R. David Edelman writes: "The White House agrees with the 114,000+ of you who believe that consumers should be able to unlock their cell phones without risking criminal or other penalties … if you have paid for your mobile device, and aren’t bound by a service agreement or other obligation, you should be able to use it on another network. It’s common sense." Derek Khanna joins us to discuss the White House response and what comes next. [includes rush transcript]

Transcript

This is a rush transcript. Copy may not be in its final form.

AMYGOODMAN: We’re broadcasting from Silver Spring, Maryland, at the Freedom to Connect conference. On Monday, former Republican staffer Derek Khanna joined us on the program to talk about cellphone unlocking. Under a ban that took effect at the end of January, consumers can face up to five years in prison if they unlock their cellphones for use on another carrier without authorization. Derek Khanna spearheaded a petition against the ban that received more than 114,000 signatures on the White House website.

Just hours after our interview yesterday, Derek got a call from the White House, saying they’re coming out against the ban. In an online post titled "It’s Time to Legalize Cell Phone Unlocking," R. David Edelman, White House senior adviser for Internet, innovation and privacy, wrote, quote, "The White House agrees with the 114,000+ of you who believe that consumers should be able to unlock their cell phones without risking criminal or other penalties. In fact, we believe the same principle should also apply to tablets ... if you have paid for your mobile device, and aren’t bound by a service agreement or other obligation, you should be able to use it on another network. It’s common sense," Edelman wrote.

The Federal Communications Commission also issued a statement against the ban yesterday. FCC Chairperson Julius Genachowski wrote, quote, "The FCC is examining this issue, looking into whether the agency, wireless providers, or others should take action to preserve consumers’ ability to unlock their mobile phones."

We invited David Edelman from the White House to join us on the program; his office declined. But we did ask, to talk more about the government response and what comes next, Derek Khanna to rejoin us, the visiting fellow with Yale Law School’s Information Society Project who worked on Mitt Romney’s presidential campaigns and for Republican Senator Scott Brown of Massachusetts. In addition to spearheading the petition against cellphone unlocking, he’s known for authoring a controversial memo in favor of copyright reform for the Republican Study Committee that cost him his job.

Derek, welcome back to Democracy Now! We just have a few minutes—

DEREKKHANNA: Thanks for having me back.

AMYGOODMAN: —but explain first, for people who aren’t familiar with what cellphone unlocking is, what it is.

DEREKKHANNA: Sure. So cellphone unlocking is where you plug your phone into a computer and you change some settings on the phone that allow for you to use a SIM card from another provider. So if you have an AT&T phone, you can use a SIM card from—perhaps from T-Mobile.

AMYGOODMAN: And what did the librarian of Congress—and I think many people don’t even know there is that post, not the Library of Congress but the librarian of Congress—

DEREKKHANNA: Yes.

AMYGOODMAN: —rule in January?

DEREKKHANNA: The librarian of Congress issued a ruling that made this technique now illegal. There was an existing exception, and they allowed for that exception to lapse. So now you can be prosecuted by up to five years in jail or a half-a-million-dollar fine.

AMYGOODMAN: How does it work in Europe?

DEREKKHANNA: In Europe there is no such prohibition, and most people have unlocked phones.

AMYGOODMAN: In Canada?

DEREKKHANNA: By law, all phones have to be unlocked.

AMYGOODMAN: What’s the difference between unlocking and jailbreaking?

DEREKKHANNA: So jailbreaking is where you change the settings again, but you change the settings to install applications that were not approved by iTunes, for example. So it’s a different technique there. And jailbreaking is actually lawful; unlocking is actually unlawful.

AMYGOODMAN: So what happened yesterday when you got off Democracy Now!? We were here at the conference.

DEREKKHANNA: Yes.

AMYGOODMAN: You were holding your computer, and you got a call.

DEREKKHANNA: I got a call, and it was from a 202 number, and I picked it up. It said, "Hey, this is Edelman with the White House. Do you have a second to talk?" And I said, "Of course," and put down what I was doing. And he said, "You may want to get to a computer, because in about 120 seconds the White House is going to put up our response, and we’re coming out in favor of cellphone unlocking. And we look forward to meeting you at the White House and talking about this issue in person."

AMYGOODMAN: So, talk about the significance of this. So they’re reversing their position on the ban? Or are they saying never actually were for the ban?

DEREKKHANNA: I see this as a pretty serious reversal in a very short period of time. You know, the ruling went into effect January 26th. The petition was created January 24th, two days before the ruling was going to go into effect. And now, just a little bit over a month, we have this response. And the librarian of Congress was appointed by the president, despite the title, and courts have held that it’s a rule-making executive adjudicatory function. So this was the position of the administration.

AMYGOODMAN: But what about—their statement says, "if you’re not still under contract." So, you get an AT&T service, or Verizon, when you get, let’s say, an iPhone.

DEREKKHANNA: Mm-hmm.

AMYGOODMAN: So, you cannot unlock the phone for two years? They’re still standing by that?

DEREKKHANNA: There are still some unclear—you know, some issues that need to have more clarity here. Ultimately, this needs to be fixed by Congress. The way I read the White House’s—their response was, if you’re in a contract, it’s between you and your contract provider as to whether or not they want you to unlock your phone. The problem was not with the contracts; the problem was the government coming on top and saying, regardless of what your contract is, even if you’re out of contract or you’re in contract, you can go to jail for five years. That didn’t make any sense.

AMYGOODMAN: How do they find out if you’ve unlocked your phone, to put you in jail?

DEREKKHANNA: They probably won’t. But I would argue that laws that are seldom enforced are among the most nefarious.

AMYGOODMAN: So, is there legislation being introduced in Congress?

DEREKKHANNA: It appears like there’s movement afoot. Representative DeFazio tweeted in favor of the cellphone-unlocking issue during the petition. Last night we had Representative Chaffetz from Utah, Republican from Utah, tweet that he’s working on legislation as we speak. And so, we’re going to see exactly what this means.

But I think that it needs to be a little bit broader than just the unlocking issue. We’ve encountered a number of issues that should receive real scrutiny here. There’s accessibility technology for persons who are deaf or persons who are blind that isn’t available. Developing the technology, trafficking the technology, that’s a federal crime, in order to enable for persons who are blind or deaf to be able to get closed-captioning for media.

AMYGOODMAN: Explain why they can’t now.

DEREKKHANNA: It’s the same ban as the unlocking situation, under the Digital Millennium Copyright Act. If you add technology to add closed-captioning onto a digital file, that is a contravention of these digital locks. So that’s a—that’s a felony. So, these rules aren’t working for persons who are deaf or—

AMYGOODMAN: Wouldn’t that violate the Americans with Disabilities Act?

DEREKKHANNA: One could argue that. There are a number of legal challenges one can make on a number of these situations. So, you know, the accessibility provisions need to be in there to help those technologies. But unlocking should not just be lawful for personal use, but developing the technology and selling the technology also has to be lawful. And for jailbreaking, it’s legal to jailbreak your iPhone, but it’s illegal to jailbreak an iPad. And it’s illegal to develop the technology or sell the technology or to traffic in the technology to jailbreak. So all those things really need to be on the table for a real legislative solution here.

AMYGOODMAN: Finally, the petition on the White House website—

DEREKKHANNA: Yes.

AMYGOODMAN: —you had to get—you had to meet a new minimum requirement.

DEREKKHANNA: Yes.

AMYGOODMAN: You were the first petition to do that, 100,000?

DEREKKHANNA: Yes, yes, quite an accomplishment. I’m quite proud of, you know, the SOPA coalition that united behind SOPA, and this is—I see, is the first victory for them, going forward.

AMYGOODMAN: Well, I want to thank you, Derek Khanna. If you want to see the rest of the interview with Derek, you can go to our website at democracynow.org. That’s yesterday’s. Fellow with the Yale Law School’s Information Society Project, he worked on both of Mitt Romney’s presidential campaigns, as well as worked with Scott Brown. This is Democracy Now!, democracynow.org, The War and Peace Report.

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